The Peruvian Farmer and a Climate Case of Worldwide Importance
In a climate case of potentially huge implications for the coal, oil and gas industries, a farmer and mountain guide from the Peruvian Andes is bringing a case in the German courts against the major German power generator RWE. His case against the company concerns its own individual contribution to climate change over the decades since the Industrial Revolution.
Saul Luciano Lliuya is a farmer and mountain guide to the glacier near his home in Huaraz, Peru. Huaraz is home to some 140,000 people, on the banks of a river that flows from Lake Palcacocha, which is perched at an elevation of 4,566 metres, just below the glacier. The glacier is melting fast as a result of global warming. This carries high risks of seasonal water shortages and extreme floods. Lake Palcacocha is estimated to have grown in volume by 3,000% since the 1970s. The area sits in an earthquake zone. Twice before, in 1941 and in 1971 the morain barrier that holds the lake in check has breached, causing catastrophic flooding downstream at Huaraz, and the loss of thousands of lives; each time the town has been rebuilt in the same vulnerable area. The current rate of warming means that this could happen again.
Lake Palcacocha in 2014 with Palcaraju (6274 m) on the left and Pucaranra (6156 m) on the right. Image from:
Somos-Valenzuela, Marcelo & Chisolm, R. & Rivas, Denny & Portocarrero, C. & Mckinney, Daene. (2016). Modeling glacial lake outburst flood process chain: The case of Lake Palcacocha and Huaraz, Peru. Hydrology and Earth System Sciences Discussions. 2016. 1-61. 10.5194/hess-2015-512.
In 2015, Saul Luciano Lliuya joined forces with a German Attorney from Hamburg, Dr Roda Verheyen, co-founder of the Climate Justice Programme. Dr Verheyen studied the data produced by Ricke Heede, founder and director of the Climate Accountability Institute and the Carbon Majors Report, which have produced tables of individual companies’ estimated emissions over the past decades, based on their publicly available declared production volumes. Assessment of this data will be central to the case. Dr Verheyen argues that RWE, which has produced and burned coal in its power stations over several decades, much of it low grade and high polluting lignite, is responsible for 0.47% of global emissions, and the claim is for 0.47% of the costs of establishment of flood prevention measures to protect Huaraz. The sums involved are tiny: the implications are enormous.
RWE is defending the case robustly. It argues that the claim makes no more sense than attributing part of the responsibility for global warming to an individual airline passenger or a truck fleet operator. It says that global warming cannot properly be attributed to the level of individual companies, and in any event, it is in process of exiting from coal use by 2040, like the rest of Germany’s power generation sector, and that it makes more sense to look forward rather than back. Those bringing the case respond that future intentions should not rule out responsibility for past emissions.
Initially, the District Court at Essen ruled against the claimant, but the claimant’s appeal was allowed by the Appeals Court, and the case is presently proceeding to the collection and assessment of evidence. Some commentators are concerned that some of the world’s largest emitters are state owned utilities from countries including Russia, China, Saudi Arabia and Iran, where it is hard to see similar litigation getting off the ground. Others see the case as a powerful warning to those responsible for fossil fuel emissions to accelerate plans towards the energy transition and net zero emissions.
This case, in being addressed to an individual company, is radically different from landmark climate cases in America, the Netherlands, Pakistan and Ireland, which have typically addressed the inactions of government on climate change. Are these arguments completely unprecedented? When the EU brought in its REACH chemicals Regulation in 2006, it introduced the idea of individual producer responsibility for the products which a company placed on the market. Some chemical companies argued at the time that this was quite impossible to contemplate: today it is fully accepted.
We are grateful to David Sington for his insights about this case. ABC Radio National, ‘Science Friction’ with Natasha Mitchell in July 2020 produced two fascinating programmes reflecting both sides of the argument -
https://www.abc.net.au/radionational/programs/sciencefriction/12415176